Sunday, February 3, 2019

Reduction in Representation as the remedy for voter suppression

- by New Deal democrat

This is the second take prompted by my reading of David W. Blight‘s biography of Frederick Douglass.

In the “nothing is every really new” department, voter suppression was very much on the mind of Douglass and other radical Republicans during the Civil War and its immediate aftermath. Douglass was fond of saying that blacks would only gain equality once they exercised power through three “boxes: the cartridge box, the jury box, and the ballot box.” In other words, first equality would have to be fought for in the war. Then there would need to be legal equality. And finally, the only way to protect that legal equality would be via the right to vote.

Douglass and others were very clear-minded that the “copperhead” Democrats would continue to suppress freed blacks by denying them access to voting rights, all the while continuing to gain power via counting freed blacks towards representation in the Congress. Sound familiar at all?

While the ultimate step was the passage of the Fifteenth Amendment in 1969-70, the second Section of the Fourteenth Amendment addresses voter suppression directly, and mandates a specific remedy that is well worth renewed consideration today.

Here are the relevant texts of the first and second Sections of the Fourteenth Amendment.

Section One of the Amendment mandates that

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

Section Two states:

“Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election ... is denied to any ... citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.”

Further, that Section does not just apply to Federal elections, but also applies to

“the Executive and Judicial officers of a State, or the members of the Legislature thereof.”

And the “any [ ] citizens” to whom Section Two above applied were limited to

“the male inhabitants of such State, being twenty-one years of age.“

Of course, since passage of the Fourteenth Amendment, suffrage has also been extended to woman (the Nineteenth Amendment) and to 18 year olds (the Twenty- Amendment). Both of those amendments repeat the “denied or abridged” language of the 14th Amendment above, but without its specific remedial language, instead repeating the general language that Congress could pass legislation to enforce the Amendment.

Thus, in view of the subsequent two Amendments, I see no reason why the specific remedial language of the Fourteenth Amendment should be limited to males age 21 or older. Further, note that nowhere in Section Two of the Fourteenth Amendment does it limit its application to race. Rather, it specifically applies to any “denial or abridgment” to “any citizen” otherwise eligible to vote.

The “abridgment” language is important, because it is broader than a “denial.” It means that the remedy can be invoked even though the right to vote is *not* denied. If voter suppression is a form of “abridgment” of the right to vote — and I certainly believe that it is — then the Section Two remedy is specifically available.

And the remedy is draconian: a reduction in representation for the offending State, in proportion to the “denial or abridgment.”

To take an extreme example of how that might apply, if the partisan gerrymanders of such a state as North Carolina were deemed an “abridgment” of Democrats’ right to vote, then a Court could determine that, since slightly over 50% of North Carolinians cast ballots for Democratic members of Congress, but Democrats were only elected 3 of the state’s 13 Congressional Districts, the GOP representation of North Carolina in Congress must be cut from 10 districts to 3.

Draconian? Absolutely! But that draconian remedy is exactly what is prescribed by both the text and the intent of Section Two of the Fourteenth Amendment.

And unlike the useless flailing that has been the hallmark of litigation since 2010, in which gerrymandered districts have been allowed to continue throughout the entire decade, the mind-concentrating Fourteenth Amendment remedy would be likely to produce immediate results.

To return to the example of North Carolina, it does not take a genius to figure out that, in response to a binding, final order reducing GOP representation in the House from 10 to 3 seats, the legislature would move with lightning-like alacrity to undo the abridgment and arrange new elections.

In fact, so draconian and swift is the Fourteenth Amendment remedy that I doubt it would have to be applied more than once. In short order all states would suddenly scrupulously be in favor of enabling voting by all eligible citizens.

But in closing, to reiterate, this remedy isn’t “pie in the sky.” It isn’t new or novel. It was a remedy thought about and *specifically enacted”in response to the very type of problem that has become endemic in the last decade, and supported by the specific text of the Fourteenth Amendment to the Constitution. Even if the five movement conservatives who form a majority on today’s Supreme Court are unlikely to enforce it, the argument ought to be put into the public discourse now to enable its ultimate adoption.

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